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CJE Opinion No. 2002-16

Hosting Call-In Cable Television Show

November 26, 2002

CJE Opinion No. 2002-16

For approximately two years before your appointment to the bench, you hosted a live, call-in talk show on a local cable television station. The show is sponsored by an organization created by and for the gay, lesbian, bisexual, and transgender community. The show is hosted by volunteers who are members of the organization. You were an active member of the organization before your appointment to the bench. You were identified on the show as an attorney. As the host, you interviewed guests, including prominent members of municipal and State government, police, elected officials, lawyers and judges, members of other learned professions, and parents of gay and lesbian children. Many but not all of your guests were themselves members of the gay and lesbian community. Viewers were invited to telephone in and participate in the discussions.

You have not hosted the show since your appointment and now inquire whether, as a sitting judge, you may again host the show conformably with the Code of Judicial Conduct. You have indicated in your inquiry that you would modify your previous format -- i.e., you would restrict your guests to nonlegal and nonpolitical issues. "Principally," you state, you "would invite gay and lesbian . . . persons who have dignity, maturity, enthusiasm and establishment credentials to tell their stories about growing up lesbian or gay, coming to terms with being gay, and living open lives with authenticity within the professions, etc." You would not be identified either as a judge or as a former attorney, and you would not be paid for your work.

Canon 2 (A) generally provides that a judge should conduct himself at all times in a manner that promotes public confidence in the judiciary, and Canon 2 (B) specifically requires that a judge not allow his "social[] or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him."

Canon 5 (A) provides: "A judge may write, lecture, teach, and speak on nonlegal subjects . . . if such avocational activities do not detract from the dignity of his office or interfere with the performance of his judicial duties." Canon 5 (B) permits participation in "civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties."

As to the latter, you have said that the show is broadcast live in the evening, and that you would host it three evenings per month. Assuming that it would not take an inordinate amount of time to prepare each show, and based on the limited number of times you would be on the air, it would not appear to interfere with your judicial work.

In the past, this committee has advised a judge that it was permissible to serve as a consultant to a television series about a juvenile court, to review scripts for accuracy and authenticity. See CJE Opinion 99-14. We concluded that such behind-the-camera activity would not detract from the dignity of the judge's office. Whether your featured appearance as host is significantly different is a close question. Even though you would not formally be identified as a judge, some of your viewers may remember you as an attorney, and some may even be aware that you are now on the bench. It is conceivable that some viewers may deem your participation on the show to be a form of advocacy for a particular group, or (if viewers know you are a judge) that your involvement lends the prestige of your office to the advancement of the private interest of others. Some callers may seek to speak with you, knowing that you are a judge, in perhaps a misguided attempt to try to influence you. It is not clear from your letter whether -- and, if so, how -- you would be able to pre-screen callers.

The committee additionally cautions you that even if you were to try to limit your guests to nonlegal, nonpolitical topics, in our culture nearly every aspect of human endeavor and concern, either in family life, social life, or otherwise, can engender problems or demand solutions that our courts must resolve. In the foreseeable future, a number of cutting edge issues dealing with the civil rights of gays and lesbians, including civil unions, dissolution of civil unions, marriage, procreation, parenting, property rights, and division of property will find their way to the appellate courts. As issues of gay and lesbian rights give rise to litigation, you should consider whether your hosting a show identified with people concerned with the advancement of these rights may require you to recuse yourself from sitting as a judge on such cases, where you otherwise would not be required to recuse.

You may also wish to consider that your merely inviting a guest on your show might be construed as an endorsement of the guest's views. Conversely, if guests or callers express views that you know are partisan or political or legal opinions, your election to comment (or to refrain from commenting) might be construed as lending the prestige of your office to the private concerns of others. An additional caveat is warranted: where talk shows can often be freewheeling, rough-and-tumble affairs, your duties as host might require you to come to the defense of a guest or to correct misstatements or improper comments of either guests or callers, and, in the process, to take, or appear to take, a position that you had no intention of taking when the program began.

The committee concludes, on balance, that your hosting the show -- nonpolitical and nonlegal, but limited principally to guests who are gay or lesbian -- is not intended by you to advance the private interests of others or to give that impression.

Therefore, the committee concludes that, as described, your hosting the show is not proscribed by the Code of Judicial Conduct.

You will have to decide for yourself whether others might conclude that your show in any way gives the impression that you are advancing the private interests or agenda of others. You would very likely invite requests that you recuse yourself on any case involving the rights of gays and lesbians, as you may be perceived to be associated with particular positions in that all-pervasive medium of cable television. The committee recommends that you consider these cautions carefully should you decide to proceed.